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2002 DIGILAW 403 (CAL)

Ranjit Kr. Mondal v. State of West Bengal

2002-06-20

Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J.: This revisional application has been directed against the judgment and order dated 14th February, 1996 passed by the learned Judicial Magistrate, 1st Class, Balurghat, West, West Dinajpore in G.R Case No.769 of 1978 under which he found the accused (the present petitioner), Ranjit Kumar Mondal, guilty of an offence under section 493 of the Indian Penal Code and convicted him therein and sentenced him to undergo rigorous imprisonment for a period of two years and also to pay a fine of Rs. 2000/- in default for further simple imprisonment for 90 days. 2. Being aggrieved by that order and judgment of the learned Magistrate the convict preferred an appeal before the court of the learned Sessions Judge, 2nd Court, Balurghat, Dakshin Dinajpore being Criminal Appeal No.17 of 1989 challenging the said conviction and sentence as illegal, erroneous and liable to be set aside. The ld. Addl. Sessions Judge who heard the appeal after considering the materials on record accepted the findings of ld. Magistrate as correct and affirmed the order of conviction and sentence and dismissed the appeal. 3. Being aggrieved again thereby, the convict, Ranjit Kumar Mondal, has preferred the revisional application before this Hon'ble Court challenging the judgment and order of both the Court below as erroneous, illegal and unjust and hence liable to be set aside. 4. It is to be noted that the case was heard by there ld. Judicial Magistrate on a prior occasion and by his judgment dt. 4.8.1980 the then ld. Magistrate found the accused not guilty under section 493 but found him guilty of the offence under section 496 IPC and convicted him and sentenced him to R.I. for two years and to pay a fine of Rs. 2000 i.d. for further R.I. for one year. Against that judgment and order he preferred an appeal when the Appellate Court, that is, the court of Addl. Sessions Judge, Balurghat, by his judgment and order dt. 27.7.1981 set aside that judgment and order of ld. Magistrate and remanded the case for retrial in compliance with the directions given therein. Thereafter, the ld. Judicial Magistrate held a fresh trial and delivered the above mentioned judgment dt. 14.2.1996. 5. Mr Mukherjee, ld. Advocate appearing on behalf of the revisional applicant, draws my attention to the observation of the ld. Addl. Magistrate and remanded the case for retrial in compliance with the directions given therein. Thereafter, the ld. Judicial Magistrate held a fresh trial and delivered the above mentioned judgment dt. 14.2.1996. 5. Mr Mukherjee, ld. Advocate appearing on behalf of the revisional applicant, draws my attention to the observation of the ld. Addl. Sessions Judge the appellate Court on the earlier occasion who remanded the case for retrial after directing the learned Judicial Magistrate to observe certain procedure as specified in his judgment (vide the judgment dt. 27.7.1981). It was his observation in the body of that judgment that the ld. Magistrate without imposing a punishment of imprisonment or fine ought to have proceeded under the provisions of the Probation of Offenders Act or the provisions of section 360 of the Criminal Procedure Code so far as the question as to how such a juvenile should be dealt with having been so convicted and he should have released the accused under such provisions. In the ordering portion of the judgment it was directed that the ld. Magistrate would proceed with the retrial in the light of the finding made in the body of the judgment Mr. Mukherji contends that the ld. Magistrate while holding the retrial disobeyed this instruction of the appellate Court and was so audacious as to remark that he was not desirous of considering the question of dealing with the convict under the provisions of the Offenders Act or the provisions of section 360 of the Indian Penal Code and accordingly he inflicted the punishment of imprisonment and fine as it was done in case of ordinary convicts. Mr. Mukherjee further contends that the ld. Magistrate was not competent to make such an observation in the face of specific finding arrived at by the learned Addl. Sessions Judge to the effect that it was a fit case where the Probation of Offenders Act or the provisions of section 360 of the Indian Penal Code should govern the question of punishment, if at all, of the convict. It is his contention that since there is no dispute from the side of the prosecution as to the age of the convict and since he was below the age of 21 years at the relevant point of time, there was no option left with the ld. It is his contention that since there is no dispute from the side of the prosecution as to the age of the convict and since he was below the age of 21 years at the relevant point of time, there was no option left with the ld. Magistrate but to treat him according to those special provision of the law so far as the question how he should be dealt with was concerned. Mr. Ghosh, learned Advocate appearing on behalf of the State, readily accepts this position and he also suggests that instead of sentencing the convict to imprisonment or to fine, the proper procedure ought to have been to pass an order under the provisions of the Offenders Act. 6. Accepting the foregoing contentions as correct, I am of the considered view that both the Courts below had fallen into error by overlooking this aspect of the matter and insisting on the petitioner's being sentenced to imprisonment and payment of fine. The petitioner being undisputedly a juvenile at the time of commission of the offence, the proper mode of dealing with him, in so far as the question of punishment was concerned, was to pass an order having some reformatory effect on the life of the juvenile concerned, namely, taking a bond from him for good conduct and keeping him under the supervision of Probation Officer for a period of at least one year in view of the provisions of section 360 of the Indian Penal Code. 7. The judgment of the ld. Court below in so far as it relates to the conviction part is hereby affirmed and the order of the Court convicting the petitioner and finding him guilty under section 493 of the Indian Penal Code is upheld. So far as the question of punishment is concerned, the order of sentencing the convict to rigorous imprisonment for two years and to pay a fine of Rs. 2000/- appears to be against the existing legal principles and, therefore, that part of the order be set aside. The petitioner hereby be directed to be released on furnishing a bond for maintaining good conduct and keeping the peace to the satisfaction of the ld. Trial Magistrate and be kepi under the supervision of the Probation Officer concerned for a period of one year. The petitioner hereby be directed to be released on furnishing a bond for maintaining good conduct and keeping the peace to the satisfaction of the ld. Trial Magistrate and be kepi under the supervision of the Probation Officer concerned for a period of one year. The amount of the said bond and other conditions, if any, including the period for which such bond will remain valid and effective, shall be determined by the ld. Magistrate. It is further directed that the petitioner be discharged from his bail bond. 8. Let urgent xerox certified copy of this order be given, if applied for, to the learned Advocate for the petitioner, within seven days from the date of putting in the requisites. Appeal disposed of with directions.